I.P.SANJAY Vs. HASSAN KOYA K.

JUDGEMENT

(1.) This revision petition is filed against the judgment dated 22.4.2017 in O.S.No.13 of 2015 passed by the Wakf Tribunal, Kozhikode. The petitioners herein were defendants 1, 2 and 4 therein and they are the children of late Sri.I.P.Vijayan. The 3 rd defendant is also his son. The property in question was taken on lease by said Sri.I.P Vijayan on 1.9.1979 as per Ext.A1 lease deed dated 1.9.1979. After his death, defendants 1 to 4 continued with its possession as tenants under the wakf and an amount of Rs.3,000/- was being paid as monthly rent, going by the averments in the plaint. Respondents 1 and 2 herein were the plaintiffs therein. It was further averred therein that the plaint schedule building and properties comprised in R.S.No.9-6-204-205 in Nagaram Village are properties of the wakf namely, Indisharool Islam Committee. The said wakf is registered with the Wakf Board with Reg.No.4514/RA. It is also averred in the plaint that the petitioners herein had paid rent up to and inclusive of the month of March, 2013 and thereafter, they had committed default in payment of rent and it is remaining in arrears. Further, it is contended therein that the plaint schedule property is required by the wakf and therefore, the petitioners herein were requested to vacate the premises. On their failure to surrender the leased out properties, a lawyer notice was issued to the petitioners/defendants 1, 2 and 4, on 1.4.2014 and their tenancy was thus terminated. Essentially, the contention is that the continued occupation of the premises by the petitioners/defendants 1, 2 and 4 after 1.4.2014 amounts to unauthorised occupation and therefore, their status is only that of encroachers. The suit was filed taking up such contentions and claiming damages for use and occupation of the properties. Towards damages, an amount of Rs.10,000/- per month was claimed and it was also stated therein that the rate of rent prevailing in the locality, for similar accommodation, is Rs.15,000/-. A direction to defendants 1, 2 and 4 to surrender plaint schedule property to the plaintiffs was sought for. A decree directing defendants 1, 2 and 4 to pay Rs.39,000/- as arrears of rent for the period from March 2013 to 31.3.2014 and a decree for directing defendants 1, 2 and 4 to pay the damages @ Rs.10,000/- per month for use and occupation of the building from 1.4.2014 onwards, were also sought for.

(2.) Petitioners and the third respondent herein who were respectively defendants 1, 2, 4 and 3 therein filed a joint written statement admitting the fact that they are in occupation of the plaint schedule property as tenants. At the same time, they took up a contention that the plaint schedule property is not a wakf property. It is their further contention that the plaint schedule property was entrusted to them only in the year 1974 and not on 1.9.1979 and going by the agreement, enhancement of rent is permissible only at the rate of Rs.3,000/- per month. In the written statement, they had admitted the fact that they were paying rent only @ Rs.3,000/- per month till June 2013. Though they had attempted to pay rent thereafter, it was not accepted by the plaintiffs, it was averred. They further pleaded thus:- The plaintiffs are in possession of similar godowns in the area other than the building in question. They had not leased out a portion of the plaint schedule property to strangers and that the tenancy was not terminated by the issuance of the lawyer notice by the plaintiffs. The plaintiffs are not entitled to damages for the continued occupation of the plaint schedule property. The intention of the plaintiffs/respondents 1 and 2 herein is to sell the plaint schedule property to third parties for exorbitant amount after evicting the defendants.

(3.) The fourth respondent Wakf Board supported the case of the plaintiffs by filing a written statement carrying the following pleadings:- The plaintiff is a wakf registered with the Wakf Board and the plaint schedule property is a property registered in the wakf register kept by the Board in terms of the provisions of the Wakf Act. In terms of the provisions under section 56 of the Wakf Act, the mutawalli is not entitled to execute a deed creating lease of the immovable properties exceeding one year. According to them, the defendants therein viz., petitioners and the third respondent had been in occupation of the building for several decades against the provisions of the Wakf Act. They are not entitled to occupy the building as their tenancy was terminated by the plaintiffs and therefore, they are encroachers as defined under section 3(ee) of the Wakf Act. Since the property is registered with the Wakf Board, it is exempted from the purview of Kerala Buildings (Lease and Rent Control) Act and the tenancy of wakf buildings could be terminated by giving a notice as contemplated under the Transfer of Property Act. The plaintiffs have complied with all the legal formalities as stipulated in the Transfer of Property Act.